General Terms and Conditions

1. Scope of application

These "General Terms and Conditions" are applicable to all offers, proposals, quotations and agreements made by or entered into by Panenco BVBA, with registered office at Kapeldreef 60, 3001 Leuven, Belgium and registered with the Crossroads Bank of Enterprises under number 0650.747.066 (hereafter referred to as "Panenco"). The customer accepts these General Terms and Conditions through acceptance of the quotation, the agreement or, as the case may be, the invoice.

The customer agrees that its own purchase or other conditions do not apply, save as explicitly accepted by Panenco in writing.

Panenco and the customer can agree on special terms and conditions in writing. In case of contradiction, the special terms and conditions agreed upon between the parties take precedence over the General Terms and Conditions.

If any provision of these General Terms and Conditions is wholly or partially invalid or revoked, the remaining provisions of these General Terms and Conditions will remain in full force and effect.

2. Conclusion of the agreement

Quotations of Panenco are informative, non-binding and unless explicitly mentioned otherwise, valid for thirty days. An agreement between Panenco and the customer is concluded when the customer accepts a quotation by way of:

3. Statement of work

The scope of the agreement is limited to what has been agreed upon by the parties as Statement of Work (“SOW”) in the quotation. If the customer extends or modifies the SOW during the exercise of the project or after completion of the project, such services shall be invoiced separately and additionally, subject to the prior consent of Panenco. Amendments to the SOW or the quotation must be in writing and accepted by both the customer and Panenco.

All contractual obligations of Panenco are best effort commitments, including terms, which are merely indicative.

4. Cooperation by the customer

The customer is responsible for a correct, accurate and timely provision of information, cooperation and input concerning the work to be provided by Panenco. Without prejudice to article 9, Panenco shall never be liable to the customer for late or inadequate delivery of goods and/or services, if such delay or defect is caused by the failure of the customer to timely, correctly or accurately provide information or to promptly cooperate with Panenco’s every reasonable request relating to the agreement.

Upon Panenco’s request, the customer shall provide Panenco with access to, and use of, all information, data, documentation, computer time, facilities, working space, personnel, and office services deemed reasonably necessary by Panenco to enable it to perform its obligations under the agreement.

The customer is solely responsible for the use and application in its organisation of products and services provided by Panenco and for the monitoring and security procedures and proper system management.

5. Term and termination

Each agreement shall be valid for the term as defined in the SOW. If the relevant SOW does not set out a duration, the agreement shall be valid for an indefinite period of time until completion of the services by Panenco, or termination by either party.

Notwithstanding anything herein to the contrary, either Party may terminate the agreement upon sixty (60) calendar days written notice. Customer agrees to pay all fees and expenses incurred by Panenco for the services performed up to the effective date of termination, at the agreed upon rates set forth in the applicable SOW.

Each party is entitled to terminate the agreement with immediate effect, in whole or in part, without judicial intervention, by registered letter, if:

Panenco is entitled to suspend its performance with immediate effect without judicial intervention, wholly or partially, if the customer, after notice of default, fails to comply with one or more obligations of the agreement.

If it is agreed that the agreement is implemented in several phases, Panenco has the right to postpone the following phase until the customer has accepted the results of the preceding phase in writing pursuant to article 8 and complied with all other obligations related to that phase.

6. Fees and expenses

For all services performed by Panenco, customer will pay the fees as set out in the quotation (the “Fee”). The Fee is exclusive of VAT and other levies imposed by the government.

Unless otherwise agreed upon in the SOW, all travel expenses and reasonable out-of-pocket expenses incurred during the exercise of the agreement, will be charged by Panenco to the customer upon the provision of supporting evidence.

Unless otherwise agreed upon in the SOW, Panenco will invoice customer as follows:

7. Intellectual property rights

All intellectual property rights belonging to a party prior to the entry into force of the agreement, including, without limitation, the proprietary tools, methodologies, materials, know-how, processes, technologies, modules, components, programs, analysis, frameworks developed or used by a party prior to the effective date of the agreement or developed independently from the SOW (“Pre-existing IPR”), shall remain the exclusive ownership of that party, including enhancements and improvements to the aforementioned tools and materials which such party develops in the course of the agreement.

During the term of the agreement, the customer grants Panenco a non-exclusive, worldwide, royalty-free, revocable and limited license to use customer’s Pre-existing IPR, to the extent necessary and useful for Panenco to perform its obligations under the agreement.

To the extent any deliverables under the agreement would contain Panenco’s Pre-Existing IPR, the customer is granted a perpetual, personal, restricted, non-exclusive, transferable, worldwide and assignable license, with the right to sublicense, to use Panenco’s Pre-Existing IPR, including without limitation, any third party intellectual property rights, to the extent necessary to be able to use the deliverables.

“Deliverables” shall mean any and all software programming, (including all object code, source code and source code materials pertaining thereto), work product and other deliverables, and all related written reports, requirements documents (including newly created technical and non-technical data embodied therein), specifications, program materials, flow charts, notes, outlines and the like, and all intermediate and partial versions thereof, that are developed, authored, conceived, originated, prepared or otherwise created by Panenco or its employees, agents or subcontractors for or on behalf of customer in connection with Panenco’s performance of services under the agreement, for all exploitation methods, whether known or unknown at the effective date of the agreement, and regardless of the technical means for such exploitation.

All rights, titles or interests in or to any Deliverables, including but not limited to any intellectual property rights in and thereto and any derivative works created therefrom, shall vest in and shall be the exclusive property of Panenco during the course of the agreement. Panenco shall grant to the customer a non-exclusive, non-transferable, worldwide, royalty-free, revocable and limited license to use the Deliverables created and developed by Panenco during the course of the agreement. At the moment of and subject to full payment by the customer of the Fee and all expenses invoiced by Panenco pursuant to article 6 of these General Terms and Conditions, Panenco shall transfer any and all rights, titles and interests in or to the Deliverables to the customer. The customer shall grant Panenco a perpetual, worldwide and royalty-free license concerning the Deliverables, including the right to further use the Deliverables in the framework of Panenco’s business, as well as for the provision of services for current and future customers of Panenco, in the widest sense possible.

8. Acceptance

If the SOW specifies any deliverables that are subject to acceptance, Panenco shall provide the deliverables as set forth in the SOW and customer shall accept such deliverable in writing within ten (10) business days after receipt of the deliverable. In the event customer fails to accept or reject the deliverable within this acceptance period, the deliverable shall be deemed accepted.

The customer is responsible for a detailed control of the delivered goods and/or services at the moment of delivery or completion. If the customer wishes to reject a delivered good or service, the customer must send Panenco a detailed and accurately described complaint setting out the defects of the good or service within the time limit as described above.

The acceptance of goods and/or services is considered to be a confirmation of the conformity between the ordered and delivered goods and/or services.

9. Liability

All contractual obligations of Panenco are best effort commitments. Panenco does not give any express or implied warranty to the goods or services, including any guarantee for fitness to a particular purpose or marketability.

Unless explicitly stated otherwise in writing, all terms, including terms of delivery, are not binding on Panenco and are merely indicative. The breach of these terms by Panenco shall not give rise to any liability under this article 9.

If Panenco breaches its obligations under these General Terms and Conditions and would be liable to the customer pursuant to the terms set forth in this article, it is only obliged to perform the service again (compensation in kind). Only if this proves impossible or manifestly unreasonable, Panenco will be obliged to compensate the direct damage within the limits defined below.

Panenco shall not be liable for any indirect, consequential, punitive, or special damages, including loss of revenue or profits, loss of business, contracts, goodwill or anticipated savings, damages due to business interruption, loss or corruption of data or reputational damage, even if Panenco has been advised or notified of the possibility of such costs or damages.

Nothing in these General Terms and Conditions shall operate to exclude or restrict a party’s liability for:

The customer is responsible for respecting all applicable statutory and contractual obligations, and will indemnify Panenco for all direct and indirect damage and costs caused by breaches by the customer of its obligations, including claims from third parties. The customer will indemnify Panenco against all claims from third parties for product liability due to a defect in a product or system that is delivered to a third party by the customer and that partly consisted of products

supplied by Panenco, except if and insofar as the customer proves that the damage was caused by those products, in which case the liability of Panenco is excluded and/or limited in accordance with the other provisions of these General Terms and Conditions.

The total liability of Panenco is limited to compensation of direct damages up to the amount of the agreed contract price (excluding VAT) for the products and services to be delivered by Panenco. If the agreement is a continuing performance contract, the total liability of Panenco is limited to the total Fee (excluding VAT) for the products delivered and the services performed by Panenco during the last three (3) months.

Express reference is made to Panenco’s privacy statement, which the customer has read, understood and accepts.

10. Force majeure

Neither party is obliged to fulfil any agreed obligation if prevented from doing so by reasons of strikes, total or partial interruption of transport, electricity and telecommunications problems, business interruptions, breach of contract and/or force majeure on the part of suppliers, licensing requirements and other legal and regulatory requirements, the death of an involved employee, serious illness of an involved employee, prohibitions or orders from the authorities (“Force Majeure”). The agreed obligations in such case are totally or partially suspended for the duration of the Force Majeure, without liability for any damages arising with respect to the other party.

If the situation of Force Majeure lasts more than fifteen (15) days, Panenco has the right to terminate the agreement in writing by registered letter without prior recourse to a judge and without damage compensation. In such a case, Panenco is entitled to payment by the customer for any goods or services already provided and the costs that have already been made with a view to the future implementation of the agreement. Failure by Panenco to fulfil its contractual obligations as a result of Force Majeure is not a ground for termination, dissolution or suspension of execution of the agreement by the customer.

11. Non-exclusivity

The agreement is contracted on a non-exclusive basis. During the agreement and after termination thereof, Panenco is entitled to deliver services to and enter into contracts with competitors of the customer.

12. Subcontractors

Panenco shall be allowed to contract the services of subcontractors for the execution of the SOW. Panenco shall remain responsible to the customer for the satisfactory provision of the services as agreed upon in the SOW and the correct observance of the obligations set forth in these General Terms and Conditions.

13. Non-solicitation

During the term of the agreement and for a period of eighteen (18) months after the termination of the agreement, for whatever reason, the customer will not directly or indirectly, either on his/her own account or in conjunction with or on behalf of or through any other person or affiliate, (i) solicit, entice or attempt to solicit or entice away any person who was at any time during the agreement employed by, or engaged as a consultant to, Panenco.

“Affiliate” shall mean any other person which directly or indirectly controls, is controlled by or is under common control with a party, as applicable, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of the applicable entity whether through the ownership of voting securities or otherwise.

If this article 12 has been violated by the customer, Panenco will be entitled to a fixed compensation for damages amounting to the gross remuneration of the employee or consultant in question over a period of twelve (12) months, without prejudice to the right of Panenco to recover actual sustained damages in excess of the aforementioned lump sum amount. This compensation indemnifies Panenco among others for costs of recruitment, selection and training of the employee or consultant, as well as for the damage incurred as a result of the non-fulfilment of the business plan including the employee or consultant.

14. Confidentiality

All information, in whatever form, provided by one party to the other party which is indicated to be confidential or proprietary or which by its nature is deemed to be confidential or proprietary (“Confidential Information”), shall be considered Confidential Information.

Unless with prior written consent of the party disclosing Confidential Information, the receiving party shall:

A receiving Party shall not be required to treat as confidential any information that is already in its possession prior to any disclosure by the disclosing party, which becomes publicly available other than as a result of any breach of this article by the receiving party, which is independently developed by it, or which is lawfully obtained from any third party without restriction on disclosure.

Nothing in this article shall prevent a party from disclosing Confidential Information where ordered to do so by a court or a statutory or regulatory body with power to order such disclosure. However, in such case, the party ordered to disclose Confidential Information shall inform and consult with the disclosing party in advance.

Notwithstanding the provisions of this article, the receiving party may communicate the Confidential Information of the disclosing party to its employees, consultants and suppliers who are directly involved with and/or must be informed of such Confidential Information for implementation of the agreement.

Upon first request or upon termination of the agreement for any reason whatsoever, each party shall return to the other party all Confidential Information and any materials (and all copies thereof) on any media belonging to the other party or received from any third party by the other party which is in such party’s possession or under its control and shall confirm in writing to the other party that it has complied in all respects with this article 14. However, Panenco shall be entitled to retain a copy of the project documentation after expiry or termination of the agreement for reasons related to archiving, quality control or to comply with its legal and regulatory obligations.

15. Severability; Waiver; Survival

If a provision of these General Term and Conditions is determined to be invalid or unenforceable, this shall not affect the remaining provisions which will remain valid or enforceable. Any failure to enforce any provision of these General Terms and Conditions shall not constitute a waiver thereof or of any other provision. The provisions of these General Terms and Conditions which are expressly or implicitly intended to survive termination of the agreement between the parties, shall survive any termination or expiration thereof for a period of five (5) years.

16. Governing law and jurisdiction

These General Terms and Conditions, including any and all quotation, SOW or agreement concluded between the parties, shall be exclusively governed by and construed in accordance with the laws of Belgium without regard to its conflict of law principles. Any dispute arising hereunder which cannot be amicably settled between the Parties within a reasonable period from the dispute arising, shall be submitted to the exclusive jurisdiction of the courts of Leuven.